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2021 Supreme(Mad) 3168
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. Asha, J.
Pushpavalli Ammal (Died) and ors. - Appellants
Versus
Manikandan and ors. – Respondents
S.A.No.78 of 2008
Decided On : 19-07-2021
Advocate Appeared:
For the Appellant : Mr.S.Sounthar
For the Respondent: Mr.N.Sankaravadivel
Headnote:
Constitution Of India,1950 –Suit For - Partition - 2nd defendant is appellant before Court - Pending Second Appeal she had passed away and her son 7th respondent was transposed as 2nd appellant as deceased appellant had bequeathed her property under registered sale deed under orders in 7th respondent was transposed as 2nd appellant in above Second Appeal - Parties are referred to in same ranking as before Trial Court - Facts in brief necessary for disposing of above Second Appeal are as follows - Whether plaintiffs have discharged their burden of proving that some of suit properties stood in name of 2nd defendant were purchased out of joint family funds – Held, learned counsel would draw attention of Court to fact that even 2nd plaintiff was not even conceived on date of partition Ex.A.1 - Preposition of law if applied to instant case would clearly demonstrate that plaintiffs on whom burden lies has failed to discharge same - It has to be held that portions of properties in Item nos.1 to 6, 7,8 and 10 covered under Ex.B.2, Ex.B.8, Ex.B.9 and Ex.B.10 are exclusive properties of 2nd defendant and not amenable for partition - However with reference to properties standing in name of 6th defendant 2nd defendant has not been able to establish that she has funded purchase of said property - Second Appeal partly allowed.
JUDGMENT :
The 2nd defendant is the appellant before this Court. Pending the Second Appeal she had passed away and her son, the 7th respondent was transposed as the 2nd appellant as the deceased appellant had bequeathed her property under registered sale deed dated 20.10.1995. Therefore, under orders dated 08.07.2019 in C.M.P.No.14268 of 2018 the 7th respondent was transposed as the 2nd appellant in the above Second Appeal. The parties are referred to in the same ranking as before the Trial Court. The facts in brief necessary for disposing of the above Second Appeal are as follows.
2. The genealogy of the family of Pushpavalli Ammal is shown herein below :
| Govindarasau (1st defendant | ||||||
| Yasodha (Died) | Pushpavalli Ammal (2nd defendant) | |||||
| Balakrishnan (4th defendant) | Ramalingam (3rd defendant) | Namasivayam (6th defendant) | Jayalakshmi (7th defendant) | |||
| Minor Gopalakrishnan (8th defendant) | Ramya (9th defendant) | Manikandan (1st plaintiff) | Muthuraja (2nd Plaintiff) | |||
3. The plaintiffs filed O.S.No.63 of 1992 on the file of the Subordinate Court, Chidambaram for a partition and separate possession of their 2/18th share in suit A and B schedule properties and to declare the partition deed dated 06.11.1989 as invalid and inoperative, to pass preliminary decree for partition and separate possession of 2/18th share in the suit A and B schedule properties and pass final decree by appointing a Commissioner and dividing the suit A & B schedule properties. A - Schedule property consists of 13 items of properties. B-Schedule property consists of the movable properties.
4. It is the case of the plaintiffs that the plaintiffs and the defendants 1, 3 to 9 constituted a Hindu Undivided family. The 1st defendant is the father and defendants 3 to 6 are his sons. The 7th defendant is the unmarried daughter of the 1st defendant. Therefore, each of the defendants were entitled to a share in the joint family properties.
5. The case of the plaintiffs is that the 5th defendant who is the father of the plaintiffs was entitled to a 1/6th share and therefore the plaintiffs as his sons are equally entitled to that 1/6th share ie., they are each entitled to 1/18th share in the suit properties. The 1st defendant had got many properties, some of which are listed as suit properties in a partition between him and his brother Arumugam Pillai. The 2nd defendant is the wife of the 1st defendant. The 1st defendant had purchased the properties in the name of his wife from out of joint family funds and for the benefit of the joint family. The properties were also purchased in the name of the 6th defendant. However, the purchase is only from out of the joint family funds and therefore all the properties are joint family properties available for partition.
6. The plaintiffs would submit that the defendants are colluding and acting against the interest of the minor plaintiffs. They have colluded together and created a registered partition deed dated 04.11.1989. This deed was only a sham and nominal one as parties had not acted upon the same. That apart, the partition deed is invalid for the following reasons:
(a) All coparceners are not made parties to the deed and all sharers have not been given a share.
(b) There is inequality in the allotment of the shares to the coparceners.
7. The plaintiffs' father was allotted only an extent of 1.46 ½ cents, whereas, defendants 1 and 2 are allotted 8.02 ½ cents with the major share going to the 2nd defendant. The properties are wrongly described in order to give more share to the 6th defendant. The partition deed restrains alienation which is invalid in law. The partition deed would recite that the movables had been divided. However, movables continued to be undivided.
8. Some of the properties have been left out in the partition. The Item of property purchased in the name of the 6th defendant from
